1969 PLP 537 (SCMR)

CORNELIUS, J.‑The appellants Rehmat, Ghulam Muhammad and Sardar, three brothers, stand convicted under sections 302 and 307 read with section 149 of the Pakistan Penal Code as well as under section 148, P. P. C. They were tried along with two other brothers Karam Din and Khair Din, upon charges of rioting, murder and attempt to murder as members of an unlawful assembly. All were convicted on these charges by the trial Court, but in appeal Karam Din and Khair Din were acquitted on the ground that while they may have been present at the time of the attack, yet their participation in the attack was not corroborated by any independent circumstances such as the presence of injuries on their persons. Since there was no allegation by the prosecution that any persons other than Karam Din and Khair Din were also involved in the attack, the acquittal of these two persons by the High Court rendered the charge of an unlawful assembly untenable, and the conviction under section 148, P. P. C. would appear to be bad. Consequently, it would also become technically incorrect to place the constructive liability for the offences of murder and attempt to murder under section 149, P. P. C. The prosecution case which was accepted in full by the trial Court was based upon the following facts. There was bad blood between the parties, who lived in adjoining houses in Chak No. 356‑J. B. in the Lyallpur District. Their relations had become strained some twenty years ago and more recently, there had been two running causes of quarrel between them. The first is that the complainants continued to retain possession of certain land which had been allotted to a minor relation of the accused persons, and the latter as managers of the property had been making unsuccessful efforts for some years to secure possession of the land. Secondly, there is a dispute between the two families regarding the user, of the space lying in front of their houses. It is alleged that most of this space had been appropriated to their use by the family of the com plainants and this had been resented by the accused persons. The incident out of which the case developed arose out of the latter dispute. Mst. Resham Bibi, the wife of Nizam Din, who is the principal man on the side of the complainants, was making dung‑cakes upon this land, where also a number of cattle belonging to Nizam Din's group were tethered. It is alleged that Rahmat and Ghulam Mohammad armed with spears, and Sardar with a spiked dang, accompanied by Khair Din and Karam Din armed with takwas came there and began to untie the cattle. Mst. Resham Bibi protested. Thereupon Sardar gave her a blow on the thigh. She raised an alarm whereupon Sadiq and Ali Mohammad P. W. came out of their house. Siddiq had a spear while Ali Mohammad was carrying a scythe. The prosecution story is that on seeing them, the accused persons rushed towards them in a body and attacked them just outside the door of their house, causing fatal injuries to Sadiq, and a number of severe injuries to Ali Muhammad as well. In this encounter injuries were suffered by Rahmat, Ghulam Muhammad and Sardar. The direct evidence to support the prosecution story was given by Nizam Din P. W. 9, Ali Mohammad P. W. 10, Ida P. W. 11 and Mst. Resham Bibi P. W.

12. For the defence, it was not denied that an encounter had taken place, and it was admitted also that Mst. Resham Bibi was assaulted. It was however said that only Ghulam Mohammad and Rehmat were involved in the affair from among the accused persons, but they bad with them two relatives Niamat and Khuda Bakhsh, who were not among the accused persons in the case. The blow to Resham Bibi was said to have been given not by Sardar as alleged by the prosecution, but by Ghulam Muhammad. It was said that when Mst. Resham Bibi raised the alarm, Ali Mohammad and Sadiq came out with a spear and a takwa respectively with which they caused the injuries to Gbulam Mohammad. Rehmat, Niamat and Khuda Bakhsh came out of the accused's house to defend Ghulam Mohammad and they gave blows to Sadiq and Ali Mohammad. 1n this encounter, Rehmat also received injuries. No evidence was adduced in support. Sadiq's death was the result of a punctured wound in the chest through which the weapon had cut through the heart. He had one other punctured wound indicating clearly that be was assaulted with a spear. There were three scratches also, one being on the right elbow which might possibly have resulted from a dang blow. Ali Mohammad had nine principal injuries in addition to a few scratches. There were two punctured incised wounds on his chest, in addition to three other incised wounds on the head and the right arm. There were two contused wounds as well as a contusion on the right arm. On the other side, Ghulam Mohammad had a deep incised wound cutting his nose and left upper lip, which bad exposed the nasal cavities. There was a punctured wound on his chest and another on the back as well as a scratch. Rehmat had a single incised wound a grievous injury on his right hand. Sardar had two minor injuries. The defence case was that the incident began as a sudden quarrel and developed into a sudden fight in which neither side had taken any undue advantage, and the case therefore fell under Exception 4 to section 300, P. P. C. The learned Judge of the trial Court found that there was no substance in the pleas put forward by the defence. His conclusions on the points of fact relevant to the question are contained in the following passage :‑ "According to the eye‑witnesses all the accused persons were the aggressors as all of them, after inflicting an injury to Mst. Resham Bibi P. W. came rushing to the spot where Ali Muhammad P. W. and the deceased were standing and inflicted serious injuries to them. The eye‑witnesses are unanimous in assigning active parts in the occurrence to all of them. It is a wonder how Ali Muhammad P. W. survived, because he received no less than ten injuries, out of which some of them were grievous and serious. Even the Doctor found his condition dangerous at the time of his medical examination: From the number and the nature of the injuries found on both the parties it is clear that the accused persons were the aggressors and not the deceased and Ali Muhammad P. W." In the judgment of the High Court, the matter .is treated as follows :‑ "We have also considered the possibility of a sudden fight. If the fight had taken place over the abuses between Mst. Resham Bibi and Mst. Haziran, the attack on Siddiq deceased and Ali Muhammad P. W., could not have taken place in front of Sadiq's house. We are quite satisfied that the occurrence took place in the manner alleged by the prosecution." Earlier the learned Judges had observed as follows, on the point of self‑defence, which has not been raised before us :‑ "The learned counsel for the appellants admitted their presence at the spot, but relying on Ghulam Muhammad's statement contended that Ghulam Muhammad and Rehmat, along with two others, had caused injuries to the deceased and Ali Muhammad P. W., in the exercise of the right of self‑defence. We can see no force in this argument. The A. S. 1. collected blood‑stained earth from a place in front of Sadiq's house. He also saw blood‑stains on the door of Sadiq, deceased's house which is at a distance of about thirty yards from the place where Mst. Resham Bibi, P. W., was making cow‑dung cakes. If the fight had originated in the manner alleged by Ghulam Muhammad, blood‑stains would have been found at the place where Mst. Reshant Bibi was making the cakes. There is no material on the record to show that the deceased walked towards his house from the place where, according to Ghulam Muhammad, the occurrence took place. Moreover, it is not probable that the deceased could have walked that distance after his left pleura, the lobes of both the lungs, and the arota had been cut." Special leave to appeal was granted in this case to consider whether the plea of self‑defence and the alternate plea of a sudden fight falling within Exception 4 to section 300, P. P. C., had received the correct treatment at the hands of the Courts below. The treatment of such pleas was considered at length in the cases of Safdar Ali v. The Crown (PLD 1953FC93) and Muhammad Aslam v. The Crown (PLD 1953FC 115). The principle which has been laid down has been stated in the following words by Sir Abdur Rashid, lately Chief Justice of Pakistan: "In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as matter of grace, but as of right, because the prosecution has not proved its case beyond doubt." Having regard to the circumstances, there need be no difficulty in believing that the clash in this case was preceded by a quarrel. The situation between the families was such that any small dispute might have led to a serious breach of the peace. The presence of a woman further strengthens the possibility of the outbreak being preceded by the passage of words between the parties. Both sides in the present case agree that the first act of violence was a blow given to Mst. Resham Bibi. Such an occurrence would give rise immediately to violent passions in the minds of Mst. Resham Bibi's male relatives whether they happened to witness the blow or not. The difference might be one of degree and impetuosity of reaction. Her male relatives seeing such a blow being struck would be expected immediately to take up arms in her defence, and level an attack upon her assailants. If the blow was delivered in their absence, upon hearing of it, they would plan and carry out a more or less calculated attack upon the assailants. That is the normal expectation among the Zamindars in the Punjab villages. In the present case, however, the principal eye‑witnesses have all stated that hearing the noise made by Mst. Rehmat Bibi, Sadiq and Ali Mohammad came out of their house thirty yards away, carrying arms, but did not proceed to the spot. Ali Muhammad remained standing a few yards outside the door and Sadiq stood between him and the door and they waited in this position for the assailants, who rushed upon them and attacked them before they had taken another step forward in the defence of Mst. Resham Bibi, who was alone at the time. The conduct attributed to Ali Mohammad and Sadiq is not in keeping with the character of the class of persons to whom they belong. In all probability, upon hearing Mst. Resham Bibi crying out that she was being beaten, these two persons, having immediately picked up such weapons as came to hand would dash out of the house and go to her rescue, without delay. The statement that they stopped just outside the door of their house attributes to them conduct which in the circumstances was wholly unnatural and is therefore highly improbable. The mere discovery of blood on and outside the door of their house is not a special circumstance weighing against the natural probabilities. It cannot possibly be contended that no blood was spilt at any other place in the vicinity. Both Rehmat and Ghulam Muhammad had serious injuries which also must have bled extensively. There is clearly room for doubting the truth of the prosecution story that Sadiq and Ali Mohammad waited outside the door of their house until the accused persons came up to them and that there a clash took place. The fact that Ali Muhammad received a much larger number of injuries than any of the others is also understandable if it be supposed that he and Sadiq made a reckless attack on the assailants of Mst. Resham Bibi, who outnumbered them. In this view of the evidence, there is clearly "a reasonable possibility that the defence put forward by the accused (Ghulam Mohammad and Rehman) might be true" at least as to the nature of the clash. We hold that what took place with a sudden fight. following a sudden quarrel, and that the fight was conducted on, approximately equal terms. In the absence of proof that any two accused persons acted' jointly in the course of this transaction the liability of each accused person must be settled on the basis of his individual acts'. In the present case, the prosecution evidence regarding the part played by each of the present appellants is perfectly clear. The death of Sadiq was caused by a spear blow struck by Rehmat, and he alone is guilty of the offence of culpable homicide punishable under section 304, P. P. C. Ghulam Mohammad is said to have inflicted grievous hurt to Ali Mohammad, and his offence clearly falls to be punished under section 326, P. P. C. Sardar is said to have struck blows to Sidiq as well as Ali Mohammad on the arms. Ali Mohammad sustained a fracture of his right arm as a result of a blow with a blunt weapon. Therefore Sardar is guilty of an offence under section 325, P. P. C. We accordingly allow this appeal to this extent that we set aside the convictions and sentences of the three appellants, and in their place, we substitute convictions and sentences as below :‑ (1) Rehmat is convicted under section 304, Part I, P. P. C. and sentenced to undergo 7 years' rigorous imprisonment. (2) Ghulam Mohammad is convicted under section 326, P. P. C. and sentenced to undergo five years' rigorous imprisonment. (3) Sardar is convicted under section 325, P. P. C. and sentenced to undergo three years' imprisonment. Appeal partly accepted.